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13.Oct.2011

The High Court was recently asked to consider approving the withdrawal of treatment from a woman in a minimally conscious state. Alex Ruck Keene, Victoria Butler-Cole and Josephine Norris look at the case.

In W v M [2011] EWHC 2443 (Fam) M had suffered a non-traumatic brain injury some eight years ago, following which she was diagnosed as being in a vegetative state. On further examination, it transpired that M did not meet the criteria for vegetative state and was in a ‘minimally conscious state’ (‘MCS’). M was severely disabled and dependent on others for all aspects of her care. She had no functional communication and only intermittent awareness of herself and her environment. So far as it was possible to tell, M was capable of experiencing pain, and did experience pain though not constantly. She was apparently able to have pleasurable experiences for example hearing music and being massaged. She was kept alive through artificial nutrition and hydration (ANH).

M’s sister and partner were adamant that M would not have wanted to be kept alive in this condition. She had been very independent and had expressed views about not wanting to end up in a care home or dependent on others. There was no realistic prospect of M recovering, and it was estimated that her life expectancy was a further 10 years. The family sought a declaration under the MCA 2005 that it was in M’s best interests for ANH to be withdrawn.

The application was opposed by the PCT responsible for commissioning M’s care and by the Official Solicitor on behalf of M, who argued that M’s quality of life was not so burdensome to her she should be allowed to die, and that her previously expressed wishes and likely views were too uncertain to be given significant weight. The Official Solicitor further submitted that the court could not carry out a balancing exercise at all in the case of a patient in MCS who was clinically stable, because to do so would be to make impermissible value judgments about another person’s quality of life.

Mr Justice Baker found against the Official Solicitor on the question of what approach the court should take to the application, holding that a best interests decision had to be made, and that there was no rationale for extending the approach set out in Bland (whereby there was no balancing exercise to perform in respect of someone who was permanently insensate) to patients in MCS.

In M’s particular case, the judge found that M’s life was not overly burdensome, saying in his summary that "M does experience pain and discomfort, and her disability severely restricts what she can do. Having considered all the evidence, however, I find that she does have some positive experiences and importantly that there is a reasonable prospect that those experiences can be extended by a planned programme of increased stimulation." The preservation of life was a fundamental principle, and the views of M’s family about her likely wishes were not to be given significant weight.

Comment

It is unsurprising that a court will be extremely reluctant to sanction steps which result in the death of an incapacitated person, and is likely to err on the side of choosing life over death, given the gravity and irreversibility of the decision to withdraw ANH.

However, it is interesting to note that in any other case, the previously expressed views of a now-incapacitated person, and their likely view of their present circumstances, would be paid considerably more attention.

Perhaps the most important lesson to draw from the judgment is that given the inherent cautiousness about refusing medical treatment on the part of an incapacitated person, there should be much greater use of advance decisions about medical treatment, for those people who are uneasy about the prospect of a court making decisions on their behalf if they should lose capacity.

Alex Ruck Keene, Victoria Butler-Cole and Josephine Norris are barristers at 39 Essex Street.

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12.Oct.2011

A local authority that lost a judicial review over its approach to setting care home fees is due back in the High Court next month after the claimants challenged its retaken decision.

Mr Justice Hickinbottom ruled in Forest Care Home Ltd and Ors, R v The Welsh Minister and Anor [2010] EWHC 3514 that Pembrokeshire County Council had been entitled to take into account its own financial position when determining the level of accommodation and care services upon the minimum required by section 21 of the National Assistance Act 1948, and in setting the fee rate for those who provide the services.

However, the judge concluded that the local authority had erred in law in failing properly to taken into account other factors he had identified. These included the potential adverse consequences of the decision for providers and residents, which he said should have been balanced against the constraints on its own resources.

The judge also said: “The manner in which the council dealt with capital costs for the purposes of setting the rate was simply methodologically wrong; but the other sub-grounds succeed because the council failed to take into account matters other than its own financial resources in a proper and lawful way.”

The Director of Social Services at Pembrokeshire retook the decision in January this year. This saw the county council raise the payment from £390 a week per resident to £448, backdated to the start of the financial year. An additional payment was also to be made to reflect the loss of interest which could have been earned.

Pembrokeshire’s Leader, Cllr John Davies, estimated at the time that the new fees would produce an additional cost to the authority of almost £1.5m.

However, the claimants – together with some additional care home providers – subsequently challenged the retaken decision. The High Court will hear the case on 15-16 November in Cardiff.

Alison Castrey, lawyer to the claimants, said the main issue would be the manner in which the retaken decision was reached on return on capital.

A spokesman for the council said it would not be commenting on the case until the outcome of the hearing.

Philip Hoult

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11.Oct.2011

A unitary council has successfully argued in the High Court that leases entered into by two of its predecessor district authorities were void and unenforceable, but its bid to recoup the rents it paid has failed.

The case of Charles Terence Estates Ltd v Cornwall Council & Anor [2011] EWHC 2542 centred on 30 leases between Penwith District Council and Restormel Borough Council and private company Charles Terence Estates (CTE).

CTE bought the properties, which were used to accommodate vulnerable adults, in 2006 and 2007. Restormel and Penwith provided grants and loans worth £1m to help the company in buying and preparing the accommodation, although CTE principally funded the acquisitions through £8m in bank borrowing that was personally guaranteed by its directors.

When Cornwall took over responsibility for the leases in April 2009 on achieving unitary status, it reviewed the schemes and became concerned over the level of rents payable to CTE.

Cornwall stopped paying rent in July 2010 and demanded immediate repayment of the grants and loans. This led to CTE initiating legal proceedings for the outstanding amounts. The local authority rejected the company’s claim, and also launched a counter-claim for repayment on the basis that the leases were flawed for both private and public law error.

Mr Justice Cranston ruled in the High Court this month that Restormel and Penwith had breached their fiduciary duty to taxpayers when they failed to take into account market rents on entering into the leases with CTE.

The leases therefore had no effect and were a legal nullity, he said. Cornwall, as successor to the two districts, was entitled to “invoke this vitiating feature of the leases”.

But Mr Justice Cranston concluded that Cornwall could not succeed in raising the other public law flaws it contended infected the councils’ decision-making when entering the leases.

The judge ruled that Cornwall occupied each property under a tenancy at will, terminable at any time. He also said that with the leases being of no effect, Cornwall had a restitutionary claim against CTE for repayment of the rents it had paid.

However, Mr Justice Cranston concluded that CTE had a defence of change of position. Such a defence is based on a principle of justice “designed to protect a party from a restitutionary claim in circumstances where it would be inequitable to pursue the claim, at least in full”.

Cornwall argued that the equitable outcome should have been that it should pay for its use and occupation of the properties, but at reasonable and lawful rates, not those fixed under the leases, and that it should be reimbursed the loans and grants.

But Mr Justice Cranston disagreed. “In my view, the equitable outcome is that since the councils have had the benefit they were supposed to under the terms of the leases, it is proper that the level of rent payable in respect of Cornwall’s occupation should be the amount that was agreed,” he said. “As for the Penwith £350,000 loans, the equitable outcome is that CTE should repay them in due course in accordance with the terms and conditions of the relevant loan agreements.”

The judge said CTE had at all times acted in good faith. “It was in no way negligent or foolish in the way it changed its position,” he added. “It was invited by Penwith and Restormel to assist them address their pressing responsibilities to house homeless and vulnerable people and to meet central government targets. CTE had no reason to doubt the decision making procedures behind the scenes at both councils.”

A spokeswoman for Cornwall said: “The council notes the judge’s conclusions in this long and difficult case which safeguard significant levels of funding for the people of Cornwall.

“We are always keen to work with private organisations to provide services and have successfully achieved this in a large number of cases.  This case, however, arises from an unusual and unfortunate set of circumstances which Cornwall Council inherited as a new unitary authority. As a result we were forced to take action to resolve the situation and we welcome the decision announced by the court.”

The spokeswoman said the council would now study the judgment “very carefully to understand the full implications for the council and the residents who are directly affected”.

She added: “We are committed to ensuring that the people living in these properties are not disadvantaged by this case and will be working with them to address their housing needs.”

Philip Hoult

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10.Oct.2011

The Equality and Human Rights Commission and the Care Quality Commission have published guidance for care inspectors on equality and human rights, in a bid to ensure that vulnerable people have their rights upheld and respected.

Publication of the guidance comes after an interim report in June 2011 from the EHRC’s Home Care inquiry found that human rights were not being respected in the delivery of care.

Baroness Sally Greengross, Commissioner with the EHRC, said: “CQC inspectors will now be trained to look for any breaches in equality and human rights law and know what action to take if they find any. This was not previously the case and will provide for more robust future monitoring. It should also make care providers more vigilant.”

She added that the guidance would help address the findings of the interim report, which she described as “disturbing”.

The two organisations said the guidance would help CQC inspectors to “clearly link effective equality and human rights compliance with high-quality, safe services and sets out exactly what they have to look for when monitoring a care provider against standards”.

The document, which was subject to a 12-week consultation and piloted in eight CQC reviews, also sets out what inspectors should do if they suspect a human rights violation or find a breach in standards.

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09.Sep.2011

Two disabled men have been given permission to proceed with a judicial review of Isle of Wight Council’s proposed changes to its adult social care services.

The local authority had decided to adopt a new eligibility threshold from April next year, when it will only meet the care needs of either individuals with critical needs or those with substantial needs who are considered to be at greatest risk of not being able to remain at home safely.

Irwin Mitchell, solicitors to the claimants, said the case against Isle of Wight was being brought on a number of grounds. These are that:

• The council had failed to follow the government’s Fair Access to Care Services and Prioritising Need guidance on setting eligibility criteria. In particular, the firm claimed, there was a lack of clarity about which groups would be affected and what the options were for those who will have their care package removed
• The council failed to have due regard to the duty to promote equality under the Disability Discrimination Act 1995
• The claimants’ human rights would be severely compromised as the proposals “threaten their right to a private life and their ability to access essential support and care to enable them to live safely and maintain a level of independence”.

The law firm said that it knew of no other local authority that had in place a policy that split one of the four bands set out in the guidance (critical, substantial, moderate and low).

The case has been brought on behalf of JM, who has severe autism and brain damage, and NT, who has a-typical autism and a learning disability. The claimants, who are both 32 years old, require 24-hour care from their family and the authorities, Irwin Mitchell said.

The law firm claimed that the council’s plans could affect up to 2,000 disabled people on the Isle of Wight, “who will lose all or parts of their social care packages currently provided”.

On Thursday (8 September) Deputy High Court Judge Ian Dove QC ruled that the claimants had an arguable case. He allowed the claim to go ahead, despite the fact that it was lodged later than expected.

The full judicial review hearing is expected to take place before the end of October.

Anne-Marie Irwin, a solicitor in Irwin Mitchell’s public law team, said: “The Isle of Wight Council’s decision making process appears to be completely unfair on those people and families that are affected. The legal arguments also outline the argument that decision makers failed to consider the full impact of these proposals for disabled people and whether they could be avoided or at least mitigated.”

She added: “It is a concern that all the options for the citizens of the Isle of Wight have not been properly presented to them. Cutting vital care provision for the disabled and elderly has not been properly justified and the full impact of the proposals has not been adequately assessed. Significantly, it will be argued that the proposals fail to have due regard to human rights and the need to promote disability equality – a legal requirement under the Disability Discrimination Act 1995.”

Ian Anderson, Isle of Wight Council’s Director for Community Wellbeing and Social Care, said: "We are disappointed by this decision and will need to consider fully its implications before commenting further."

Earlier this month a challenge to Lancashire County Council’s proposed changes to its adult care eligibility threshold failed. These changes would have meant that going forwards services would only be provided if a person’s needs were categorised as “substantial” or “critical” under the scheme rather than “moderate”.

However, in May a High Court judge ruled that Birmingham City Council had failed to ask the right questions in relation to disability equality duties and conducted a flawed consultation when it decided that it would no longer pay for any adult care needs that were not ‘critical’. Mr Justice Walker ruled that the original decision was unlawful.

Philip Hoult

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07.Sep.2011

Alison Deighton reviews the monetary penalties levied so far by the Information Commissioner on public authorities for data breaches, and explains how they can be avoided.

When the Information Commissioner was given powers to impose fines for serious data protection breaches, few of us imagined that the public sector would be the focus of financial penalties. However, nearly a year after the power to fine came into force, four of the six fines issued to date have been imposed on local authorities. Perhaps, on closer scrutiny, this is not so surprising when you consider the large volumes of personal data handled by local authorities and the highly sensitive nature of a lot of that data. So, what can we learn from the fines imposed so far, and how can other local authorities avoid a similar fate?

To fine or not to fine…

Before looking in any detail at the circumstances in which fines have been imposed it is worthwhile revisiting the circumstances in which the Information Commissioner is permitted to impose a fine. Three conditions must be met. Firstly, there must have been a serious breach of one or more of the data protection principles. Secondly, the breach must be likely to cause substantial damage or substantial distress. Thirdly, and most importantly for those responsible for compliance, the breach must have been deliberate or the data controller must have known there was a risk of a breach and failed to take reasonable steps to prevent it.

This last factor is key. If an organisation can demonstrate that it has taken reasonable steps to prevent a breach, then the Information Commissioner will not be entitled to impose a fine. It is therefore crucial for organisations to ensure that they have robust privacy compliance procedures in place and that those procedures are monitored and enforced effectively. Not only will this allow an organisation to defend itself against potential fines, it will also greatly reduce the likelihood of breaches occurring in the first place.

Fines to date

Turning to the fines imposed by the Information Commissioner so far, there are a number of themes which emerge which provide some guidance as to the circumstances in which fines are likely to be imposed – and therefore where compliance resources should be focused – and also on specific actions that authorities can take to avoid similar breaches themselves.

I will now examine the facts of each breach and the actions highlighted in the Information Commissioner's monetary penalty notice which could have been put in place to avoid the breach.

Breach 1

A £120,000 fine was imposed when a spreadsheet containing sensitive personal data about 214 adult social care users was mistakenly sent to an external distribution list instead of to an internal colleague. This breach followed two similar incidents where emails containing personal data had been sent to incorrect group mail addresses.

Actions:

• Provide appropriate IT training and support to staff
• Establish naming conventions for group email distribution lists so that the recipients cannot be mistaken
• Consider encrypting emails containing sensitive personal data

Breach 2

An £80,000 fine was imposed when laptops containing sensitive personal data relating to around 800 individuals were stolen from an employee's home. The laptops were used by a home worker who was part of a team responsible for providing an out of hours service. The laptops were unencrypted, in breach of the council's own policies.

Actions:

• Ensure all laptops and mobile devices are encrypted
• Provide laptop security devices (e.g. cables and locks) to home workers
• Monitor staff usage of laptops
• Carry out working from home risk assessments
• Consider enabling remote access to main servers out of hours to avoid storing personal data on laptops

Breach 3

A £70,000 fine was imposed for failure to take adequate steps to protect the security of personal data in relation to the data processing activities carried out by the council in the above example.

Actions:

• Ensure written contracts are in place with data processors
• Ensure data processor contracts contain adequate obligations in relation to security, including a requirement to encrypt all mobile devices
• Carry out regular monitoring of third party data processing activities to ensure compliance with security requirements

Breach 4

A £100,000 fine was imposed in relation to two incidents where sensitive personal data (relating to a child abuse case and care proceedings) were sent by fax to the wrong recipients.

Actions:

• Put in place 'phone ahead' and 'confirmation of receipt of fax' procedures when sending sensitive data by fax
• Consider alternative more secure means of transmission of sensitive personal data
• Nominate officers who are authorised to send faxes
• Establish a record of faxes sent/confirmations received
• Carry out an audit of pre-set fax numbers

Breach 5

A £60,000 fine was imposed when an unencrypted laptop containing personal data (including sensitive personal data) relating to 24,000 clients was stolen from an employee's home.

Actions:

• Ensure all laptops and mobile devices are encrypted
• Provide laptop security devices (e.g. cables and locks) to home workers
• Require employees to confirm periodically that they are working in accordance with information security policies and procedures
• Consider enabling remote access to main servers out of hours to avoid storing personal data on laptops

Breach 6

A £1,000 fine was imposed when personal data (including sensitive personal data) relating to at least 6,000 individuals was leaked on the internet. The data was hosted by a third party and was subject to a distributed denial of service attack following threats from online activists. The ICO indicated that, if the individual had not been of limited means, a fine of £200,000 would have been imposed.

Actions:

• Obtain professional IT advice when procuring web-hosting services and in relation to the implementation and development of IT systems
• Ensure that web-hosting packages are appropriate for business use
• If threats of DDOS attacks are made take appropriate steps to increase security measures as necessary

Emerging themes and lessons to be learned

It is worth noting that all of the breaches for which fines have been imposed have related to breaches of the seventh data protection principle, namely the obligation to take appropriate measures to keep personal data secure. All of the breaches have also involved the unauthorised disclosure or loss of sensitive personal data and all of the fines imposed on local authorities either involved unencrypted laptops or sending of data to the incorrect recipient.

Local authorities examining their own compliance procedures would therefore do well to prioritise security measures (particularly ensuring that all laptops and other mobile devices are encrypted) and the procedures and training they have in place in relation to the handling of sensitive personal data (particularly the means of sending data to third parties).

If sensitive personal data is being sent externally it will be worthwhile examining whether faxes should ever be used. Encrypted emails and password-protected electronic documents are a more secure means of transmission and make it much less likely that an unintended recipient would ever be able to view unauthorised data even if a mistake is made.

Home-working procedures should also be assessed as a priority to ensure not only that work-issued laptops are encrypted, but also that employees are aware of and are complying with information security policies. In the case of Breach 2, one of the laptops stolen from the employee's home was the employee's own laptop, which the employee was also using for work purposes. Home working policies should clearly specify the equipment which employees are permitted to use for work purposes and the information security measures that must be taken when using such equipment (including encryption requirements and physical security requirements such as use of cable locks).

Breach 3 highlights the importance of putting in place appropriate written procedures when sharing personal data with other local authorities. Often local authorities will subject contracts with private suppliers to a much higher level of scrutiny than arrangements with other local authorities. While this may be appropriate in some circumstances, it is clear that where personal data is being shared, the procedures and obligations put in place in relation to data security need to be just as robust as they would be for a private supplier.

These common themes emphasise not only the importance that the Information Commissioner places on these issues but also the ease with which mistakes can be made. In the case of Breach 4, the breaches occurred due to manual errors when typing in fax numbers. In Breaches 2 and 3, both councils had policies in place requiring laptops to be encrypted but failed to take steps to ensure that their own policies were being followed and enforced in practice.

It is clearly not sufficient to have good policies in place. Appropriate training and monitoring procedures need to go hand-in-hand with those policies to ensure that employees understand what those policies mean for their day to day operations. Local authorities that can demonstrate that they have implemented a comprehensive privacy compliance programme will be best placed to defend any enforcement action by the Information Commissioner and to resist a fine – in these straitened economic times the budget expended on ensuring privacy compliance may well prove to be money well spent.

Alison Deighton is an associate and Head of Data Protection at national law firm TLT. She can be contacted on 0117 917 8016 or This email address is being protected from spambots. You need JavaScript enabled to view it..